The DC Circuit's Use of the Youngstown Concurrence

I want to talk about how the DC Circuit cited Justice Jackson's concurrence in its opinion on ex-presidential immunity from criminal prosecution. One theme in my forthcoming book is that people cite the concurrence for many different propositions. For example, cases quote the opinion to support a functional view of separation of powers. Others do so to criticize originalism. And so on.

The panel's first references to the concurrence (and to Youngstown more generally) say that a president is subject to Acts of Congress and that courts can review presidential actions that are contrary to federal law. In this case, of course, the relevant statutes are criminal laws. And the President's power falls into Category Three if he is indicted on a federal criminal charge: 

The Indictment charges that former President Trump violated criminal laws of general applicability. Acting against laws enacted by the Congress, he exercised power that was at its “lowest ebb.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring). Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.

The second type of reference is that we are a nation of laws and not of men. 

Beyond simply making explicit that a President must enforce the law, the Take Care Clause plays a central role in “signify[ing] . . . the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.” Youngstown, 343 U.S. at 646 (Jackson, J., concurring). It would be a striking paradox if the President, who alone is vested with the constitutional duty to “take Care that the Laws be faithfully executed,” were the sole officer capable of defying those laws with impunity.

The third reference goes to the idea that the courts should not read the President's formal powers or immunities broadly because he already has so much informal power and immunity.

To immunize former President Trump’s actions would “further . . . aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.” Youngstown, 343 U.S. at 654 (Jackson, J., concurring) (footnote omitted).

This last point is probably the most under appreciated aspect of the concurrence, but I haven't drafted that chapter yet. Alas.